Transgender Marriage and the Legal Obligation to Disclose Gender History

AuthorAlex Sharpe
Date01 January 2012
Published date01 January 2012
DOIhttp://doi.org/10.1111/j.1468-2230.2011.00887.x
Transgender Marriage and the Legal Obligation to
Disclose Gender History
Alex Sharpe*
Section 12 of the Matrimonial Causes Act 1973 as amended by the Gender Recognition Act 2004
requires transgender people to disclose their‘gender histor y’to the other party to a marr iage prior
to the marriage ceremony.Failure to do so enables the other party to exit the relationship through
nullity proceedings.This article argues that this provision is discriminatory and encroaches on the
right to privacy, breaching Articles 14 and 8 of the European Convention on Human Rights.It
challenges the idea, implicit in the provision, that non-disclosure of gender history is unethical or
fraudulent. Crucially, the article considers and rejects the claim that discrimination against and
encroachments on the privacy of transgender people are justified because inadvertent sexual
congress with a transgender person is potentially harmful. Finally, if a consent-based right to know
exists, it argues that it ought to be trumped by considerations of justice, legal consistency and
public policy.
Do not ask me who I am and do not ask me to remain the same: Leave it to our
bureaucrats and our police to see that our papers are in order.1
INTRODUCTION
This article aims to interrogate a specific legal obligation placed on transgender
people2intending to marry or enter into a civil partnership in the UK. By virtue
of the Gender Recognition Act 2004 (GRA) transgender persons who comply
with particular medico-legal conditions are entitled to have their‘acquired’gender
status legally recognised including for the purposes of marriage.3However, an d
while the legislation emphasises the comprehensiveness of legal recognition,it is
*Professor of Law at Keele University.I would like to thank Les Moran and Angus Dawson for reading
through drafts of this article, for their constructive comments and for their generosity. I would also like
to thank the two anonymous refereesfor the Moder n Law Reviewwhose careful readings of the article
and considered comments have been particularly helpful.
1 M. Foucault, The Archaeology of Knowledge (NewYork: Pantheon Books, A. M. Sheridan Smith tr,
1972) 17.
2 For a discussion of trans terminology see L. Feinberg, Transgender Liberation:A MovementWhose Time
has Come (NewYork:WorldView Forum, 1992); K. Bor nstein, Gender Outlaw: On Men,Women,and
the Rest of Us (NewYork:Routledge, 1994); and R.A. Wilchins, Read My lips: Sexual Subversion and
the End of Gender (Ithaca, NewYork: Firebrand Books, 1997).
3 Full recognition under the GRA requires transgender applicants to be at least 18 years of age at the
time of applying for a Gender Recognition Certificate (GRC) (s 1);to have been diagnosed as‘having
or having had gender dysphoria’ (s 2(a));to have lived in the‘new’ gender for a period of 2 years (the
so-called ‘Real LifeTest’) (s 2(b));to sign an affidavit stating an intention to live permanently in the
‘new’gender ‘until death’(s 2(c)); and if previouslymar ried,to have divorced(s (3)). Recognition does
not require that an applicant has undergone any surgical procedures or taken hormones.
© 2012The Author.The Modern Law Review © 2012 The Modern Law ReviewLimited. (2012) 75(1) MLR 33–53
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
clear that limits are set.This article is concerned with one par ticular limit and its
implications. Through an amendment to the Matrimonial Causes Act 1973
(MCA), legally recognised transgender people are, in order to avoid nullity
proceedings, required to disclose particular facts prior to any marriage or civil
partnership ceremony.4The facts that are required to be disclosed pertain to a
transgender person’s gender history.Whatmust be rendered is an autobiographical
account of a gendered life prior to legal recognition of ‘acquired’ gender status.
Failure to do so enables the other party to seek an annulment of the marriage or
civil partnership and therefore accelerated exit from the relationship.
The reader might wonder why an analysis of this specific legal obligation
placed on transgender people matters. Indeed, a provision enabling early exit
from a marriage, rather than leaving the parties to the law of divorce, might be
viewed as desirable. That is to say, once a marriage relationship has broken
down, good policy reasons for keeping the marr iage alive legally might be
considered wanting. However, I am not concerned with this issue here. Rather,
this article will contend that the enactment of the gender history ground
matters because it impacts negatively on transgender people in a number of
ways. First, implicit in the creation of the gender history ground is the legal and
broader cultural assumption that non-disclosure of gender history to a prospec-
tive marriage partner constitutes some form of har m. This assumption will be
challenged. Second,the gender histor y ground singles out gender as the slice of
subjectivity in relation to which disclosure of historical ‘f acts’ must be made. It
is not entirely clear why gender is singled out.There are no corresponding legal
obligations in the MCA pertaining to, for example, race, disability or sexuality.
Moreover, and significantly, the gender history ground does not apply to all
persons intending to marry. Rather, it is confined to transgender people as a
specific class. That is to say, it is only transgender people who are required to
disclose their gender history. In this respect, the gender history ground appears
to be discriminatory and therefore in conflict with Article 14 of the European
Convention on Human Rights.
Third, the requirement to disclose gender history constitutes a significant and
illegitimate invasion of privacy and therefore of personal autonomy. In this
respect, it conflicts with Article 8 of the European Convention on Human
Rights, which guarantees the right to respect for private and family life.Fourth,
it is necessary to challenge the idea that non-disclosure of gender history is in
some way unethical or fraudulent.In this respect, and in particular,the article will
4 GRA, s 11 gives effect to schedule 4 to theAct. Crucially, paragraph 5 of schedule 4 amends the
MCA, s 12 to add a new ground for rendering a marr iage voidable, namely:
(h) That the respondent is a person whose gender at the time of the marriage had become the
acquired gender under the Gender Recognition Act 2004.
Paragraph 42 of the Explanatory Notes to the Act provides further detail as to how this section is
to operate.Thus where:
At the time of the marriage one party to the mar riage did not know that the other waspreviously
of another gender, the former may seek to annul the marriage.
A provision pertaining to non-disclosure of gender history is also present in the Civil PartnershipAct
2004.Thus a civil partnership will be voidable where the respondent had obtained a GRC (s 50(e))
prior to the ceremony and the petitioner was unaware of this fact (s 51(6)).
Transgender Marriage
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited.
34 (2012) 75(1) MLR 33–53

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT